INDEPENDENT CONSULTANT AGREEMENT
This Independent Consultant Agreement (“Agreement”), is by and between Sims Recycling Solutions, Inc. and for and on behalf of its Affiliates (“Company”), an Illinois corporation with offices at 1600 Harvester Road, West Chicago, Illinois 60185, and such supplier as is listed in the document to which these terms are attached or in which these terms are incorporated by reference (“Consultant”). This Agreement sets forth the terms and conditions whereby Consultant agrees to provide certain services (as described in more detail in the relevant Scope of Work) to Company.
(Each a “Party” and together the “Parties”)
1.1 Company hereby engages Consultant, and Consultant hereby accepts such engagement, as an independent contractor to provide certain services to Company on the terms and conditions set forth in this Agreement.
1.2 Consultant shall provide to Company the services set forth in a Scope of Work (“Services”). “Scope of Work” or “SOW” means the statement(s) of work, confirming, without limitation, the scope of the Services to be provided by Consultant, the service levels, price of the Services, and any party thereof and any special terms which may apply to the Services.
1.3 Company shall not control the manner or means by which Consultant performs the Services.
1.4 Unless otherwise set forth in the relevant Scope of Work, Consultant shall furnish, at Consultant’s own expense, the equipment, supplies and other materials used to perform the Services. Company shall provide Consultant with access to its premises and equipment to the extent necessary for the performance of the Services.
1.5 To the extent Consultant performs any Services on Company’s premises or using the Company’s equipment, Consultant shall comply with all applicable Company policies relating to business and office conduct, health and safety and use of Company facilities, supplies, information technology, equipment, networks and other resources.
2.1 The term of this Agreement shall commence as of the date set forth above and shall expire upon the completion of the Services, unless earlier terminated in accordance with Section 12 (“Term”). The Parties may extend the Term by written agreement.
- Fees and Expenses
3.1 As full compensation for the Services and the rights granted to Company in this Agreement, Company shall pay Consultant as set forth in the relevant Scope of Work (“Fees”), payable upon completion of the Services to the Company’s satisfaction set forth in the relevant Scope of Work which may be adjusted from time to time by the Company at its sole discretion. Consultant acknowledges that Consultant will receive an IRS Form 1099-MISC (or its equivalent) from the Company, and that Consultant shall be solely responsible for all federal, state, and local taxes, as set out in Section 4.2.
3.2 Consultant is solely responsible for any travel or other costs or expenses incurred by Consultant in connection with the performance of the Services, and in no event shall the Company reimburse Consultant for any such costs or expenses, unless Consultant receives express, prior written approval from Company.
3.3 Company shall pay all undisputed Fees within ninety (90) days after Company’s receipt of an invoice submitted by Consultant.
- Relationship of the Parties
4.1 Consultant acknowledges that it is an independent contractor of Company, and this Agreement shall not be construed to create any association, partnership, joint venture, employee or agency relationship between Consultant and Company for any purpose. Consultant has no authority (and shall not hold itself out as having authority) to bind Company and Consultant shall not make any agreements or representations on the Company’s behalf without the Company’s prior written consent.
4.2 Without limiting Section 4.1, Consultant will not be eligible to participate in any vacation, group medical or life insurance, disability, profit sharing or retirement benefits or any other fringe benefits or benefit plans offered by Company to its employees, and Company will not be responsible for withholding or paying any income, payroll, Social Security, or other federal, state, or local taxes, making any insurance contributions, including for unemployment or disability, or obtaining worker’s compensation insurance on Consultant’s behalf. Consultant shall be responsible for, and shall indemnify Company against, all such taxes or contributions, including penalties and interest. Company is solely engaging Consultant to provide the Services.
4.3 Consultant agrees and acknowledges that the independent status of the parties is a material term of this Agreement. Consultant agrees that any claim, brought by Consultant or on Consultant’s behalf alleging an employment relationship with Company, will constitute a material breach of the agreement and that Consultant will be required to forfeit and repay to Company all sums received under this Agreement. Consultant further agrees that Consultant will pay Company’s attorney’s fees and costs if Company is the prevailing party in a legal proceeding in which Consultant, or someone acting on Consultant’s behalf, alleges Consultant was an employee of Company.
5. Intellectual Property Rights
5.1 Company is and shall be, the sole and exclusive owner of all right, title, and interest throughout the world in and to all the results and proceeds of the Services performed under this Agreement, including without limitation to any works or improvements developed in connection with the performance of Services and all deliverables as set out in the relevant Scope of Work (collectively, “Deliverables”), including all patents, copyrights, trademarks, trade secrets, and other intellectual property rights (collectively, “Intellectual Property Rights”) therein. Consultant agrees that the Deliverables are hereby deemed a “work made for hire” as defined in 17 U.S.C. § 101 for the Company. If, for any reason, any of the Deliverables do not constitute a “work made for hire,” Consultant hereby irrevocably assigns to Company, in each case without additional consideration, all right, title, and interest throughout the world in and to the Deliverables, including all Intellectual Property Rights therein.
5.2 Any assignment of copyrights under this Agreement includes all rights of paternity, integrity, disclosure and withdrawal and any other rights that may be known as “moral rights” (collectively, “Moral Rights”). Consultant hereby irrevocably waives, to the extent permitted by applicable law, any and all claims Consultant may now or hereafter have in any jurisdiction including, but not limited to, claims to any Moral Rights with respect to the Deliverables.
5.3 Consultant shall make full and prompt disclosure to Company of any inventions or processes, as such terms are defined in 35 U.S.C. § 100 (“Patent Act”), made or conceived by Consultant during the Term, related in any way to the Services described herein, whether or not such inventions or processes are patentable or protected as trade secrets and whether or not such inventions or processes are made or conceived during normal working hours or on the premises of Company. Consultant shall not disclose to any third party the nature or details of any such inventions or processes without the prior written consent of Company. Any patent or copyright applications relating to the Services, related to trade secrets of Company or which relate to tasks assigned to Consultant by Company, that Consultant may file within seven year after expiration or termination of this Agreement, shall belong to Company, and Consultant hereby assigns same to Company, as having been conceived or reduced to practice during the Term of this Agreement. Company will have the right to file and prosecute, at its own expense, all patent applications, whether U.S. or foreign, on said discoveries, inventions, concepts, ideas or processes.
5.4 Upon the request of Company, Consultant shall promptly take such further actions, including execution and delivery of all appropriate instruments of conveyance, as may be necessary to assist Company to prosecute, register, perfect, record, or enforce its rights in any Deliverables. In the event Company is unable, after reasonable effort, to obtain Consultant’s signature on any such documents, Consultant hereby irrevocably designates and appoints Company as Consultant’s agent and attorney-in-fact, to act for and on Consultant’s behalf solely to execute and file any such application or other document and do all other lawfully permitted acts to further the prosecution and issuance of patents, copyrights or other intellectual property protection related to the Deliverables with the same legal force and effect as if Consultant had executed them. Consultant agrees that this power of attorney is coupled with an interest.
5.5 Notwithstanding Section 5.1, to the extent that any of Consultant’s pre-existing materials identified in the relevant Scope of Work are contained in the Deliverables, Consultant retains ownership of such pre-existing materials and hereby grants to Company an irrevocable, worldwide, unlimited, royalty-free license to use, publish, reproduce, display, distribute copies of, and prepare derivative works based upon, such pre-existing materials and derivative works thereof. Company may assign, transfer, and sublicense such rights to others without Consultant’s approval.
5.6 Except for such pre-existing materials identified in a relevant Scope of Work, Consultant has no right or license to use, publish, reproduce, prepare derivative works based upon, distribute, perform, or display any Deliverables. Except to the extent necessary to perform the Services, Consultant has no right or license to use Company’s trademarks, service marks, trade names, logos, symbols or brand names.
5.7 Consultant shall require each of its personnel, employees and contractors, to execute written agreements securing for Company the rights provided for in this Section 5 prior to such employee or contractor providing any Services under this Agreement. Company’s failure to monitor Consultant’s compliance with this provision or to request copies of such agreements shall not operate as a waiver of this obligation.
6.1 Each Deliverable shall conform in all material respects with the specifications set forth in the Agreement or as otherwise agreed by the Parties in writing (“Specifications”). Within thirty (30) days from receipt of a Deliverable, Company shall provide Consultant with (i) written approval of such Deliverable or (ii) a written statement identifying in reasonable detail the deficiencies preventing approval (“Deficiencies”).
6.2 Consultant shall have thirty (30) days from the date it receives a notice of Deficiencies to complete corrective actions in order for such Deliverable to conform in all material respects to the applicable Specifications (“Correction Period”). Company shall complete its review of the corrected Deliverable and notify Consultant in writing of acceptance or rejection in accordance with this Section 6.
6.3 If Consultant is unable to correct the Deficiencies in a Deliverable within the Correction Period, Company shall be entitled, at its option, to a refund or credit of Fees paid to Consultant hereunder with respect to the Services giving rise to such Deliverable.
7.1 Consultant acknowledges that it will have access to information that is treated as confidential and proprietary by Company, including, without limitation, the existence and terms of this Agreement, trade secrets, technology, and information pertaining to business operations and strategies, suppliers, customers, pricing, marketing, finances, sourcing, personnel, other confidential information and operations of the Company, its affiliates, and their suppliers or customers, in each case whether spoken, written, printed, electronic, or in any other form or medium (“Confidential Information”). Any Confidential Information that Consultant develops in connection with the Services, including but not limited to any Deliverables, shall be subject to the terms and conditions of this clause. Consultant agrees to treat all Confidential Information as strictly confidential, not to disclose Confidential Information or permit it to be disclosed, in whole or part, to any third party without the prior written consent of the Company in each instance, and not to use any Confidential Information for any purpose except as required in the performance of the Services. Consultant shall notify the Company immediately in the event Consultant becomes aware of any loss or unauthorized disclosure of any Confidential Information.
7.2 Confidential Information shall not include information that:
7.2.1 is or becomes generally available to the public other than through Consultant’s breach of this Agreement;
7.2.2 is known to Consultant prior to entering this Agreement; or
7.2.3 is communicated to Consultant by a third party that had no confidentiality obligations with respect to such information.
7.3 Nothing herein shall be construed to prevent disclosure of Confidential Information as may be required by applicable law or regulation, or pursuant to the valid order of a court of competent jurisdiction or an authorized government agency, provided that the disclosure does not exceed the extent of disclosure required by such law, regulation or order. Consultant agrees to provide written notice of any such order to an authorized officer of Company within one (1) day of receiving such order, but in any event sufficiently in advance of making any disclosure to permit Company to contest the order or seek confidentiality protections, as determined in Company’s sole discretion.
7.4 Notice of Immunity under the Economic Espionage Act of 1996, as amended by the Defend Trade Secrets Act of 2016. Notwithstanding any other provision of this Agreement:
7.4.1 Consultant will not be held criminally or civilly liable under any federal or state trade secret law for any disclosure of a trade secret that:
184.108.40.206 is made: (A) in confidence to a federal, state, or local government official, either directly or indirectly, or to an attorney; and (B) solely for the purpose of reporting or investigating a suspected violation of law; or
220.127.116.11 is made in a complaint or other document that is filed under seal in a lawsuit or other proceeding.
7.4.2 If Consultant files a lawsuit for retaliation by Company for reporting a suspected violation of law, Consultant may disclose Company’s trade secrets to Consultant’s attorney and use the trade secret information in the court proceeding if Consultant:
18.104.22.168 files any document containing the trade secret under seal; and
22.214.171.124 does not disclose the trade secret, except pursuant to court order.
- Representations and Warranties
8.1 Consultant represents and warrants to Company that:
8.1.1 Consultant has the right to enter into this Agreement, to grant the rights granted herein and to perform fully all of Consultant’s obligations in this Agreement;
8.1.2 Consultant’s entering into this Agreement with Company and Consultant’s performance of the Services do not and will not conflict with or result in any breach or default under any other agreement to which Consultant is subject;
8.1.3 Consultant has the required skill, experience and qualifications to perform the Services, Consultant shall perform the Services in a professional and workmanlike manner in accordance with best industry standards for similar services and Consultant shall ensure that the Services are performed in a timely and reliable manner;
8.1.4 Consultant shall perform the Services in compliance with all applicable federal, state and local laws, regulations and ordinances;
8.1.5 Company will receive good and valid title to all Deliverables, free and clear of all encumbrances and liens of any kind; and
8.1.6 all Deliverables are and shall be Consultant’s original work (except for material in the public domain or provided by Company) and do not and will not violate or infringe upon the Intellectual Property Right or any other right whatsoever of any person, firm, corporation, or other entity
8.2 Company hereby represents and warrants to Consultant that:
8.2.1 it has the full right, power, and authority to enter into this Agreement and to perform its obligations hereunder; and
8.2.2 the execution of this Agreement by its undersigned representative has been duly authorized by all necessary corporate action.
9.1 In addition to and without limiting any other indemnities in this Agreement, Consultant shall defend, indemnify and hold harmless Company, its affiliates and each of their officers, directors, employees, agents, subsidiaries, successors and assigns (“Indemnitees”) from and against all losses, damages, liabilities, deficiencies, actions, judgments, interest, awards, penalties, fines, costs, or expenses of whatever kind (including reasonable attorneys’ fees) (“Losses”) arising out of or resulting from:
9.1.1 bodily injury, death of any person or damage to real or tangible, personal property resulting from Consultant’s acts or omissions; and
9.1.2 Consultant’s breach of any representation, warranty or obligation under this Agreement.
9.2 The Company may satisfy such indemnity (in whole or in part) by way of deduction from any payment due to Consultant.
- Limitation of Liability
10.1 SUBJECT TO SECTION 10.3, NOTWITHSTANDING ANYTHING TO THE CONTRARY, COMPANY’S MAXIMUM AGGREGATE LIABILITY UNDER THIS AGREEMENT WHATSOEVER WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF STATUTORY DUTY, RESTITUTION UNDER ANY INDEMNITY OR OTHERWISE FOR ANY DAMAGE OR LOSS HOWSOEVER CAUSED WILL BE LIMITED TO THE AGGREGATE PRICE PAID TO CONTRACTOR FOR THE SERVICES DURING THE TWELVE (12) MONTHS PRIOR TO THE CLAIM ARISING.
10.2 SUBJECT TO SECTION 10.3, IN NO EVENT SHALL COMPANY BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL, PUNITIVE OR OTHER SPECIAL DAMAGES, INCLUDING WITHOUT LIMITATION ANY DELAY DAMAGES, LOST OPPORTUNITY DAMAGES, OR LOST PROFITS.
10.3 COMPANY DOES NOT EXCLUDE OR LIMIT ITS LIABILITY (IF ANY) FOR ANY MATTER FOR WHICH IT WOULD BE ILLEGAL FOR COMPANY TO EXCLUDE, LIMIT OR ATTEMPT TO EXCLUDE OR LIMIT ITS LIABILITY.
11.1 During the Term, Consultant shall maintain in force adequate workers’ compensation, commercial general liability, errors and omissions, and other forms of insurance, in each case with insurers and in amounts reasonably acceptable to Company in its sole discretion, with policy limits sufficient to protect and indemnify Indemnitees from any losses resulting from Consultant’s conduct, acts, or omissions or the conduct, acts, or omissions of Consultant’s agents, contractors, servants, or employees. Indemnitees shall be listed as additional insureds under such policies (except for worker’s compensation and errors and omissions), and Consultant shall forward a certificate of insurance verifying such insurance prior to performing Services, which certificate will indicate that such insurance policies may not be cancelled before the expiration of a thirty (30) day notification period and that Company will be immediately notified in writing of any such notice of termination.
11.2 Consultant shall ensure that, unless Company consents otherwise in writing, each subcontractor agrees in any agreement with Consultant that concerns any part of the Services under this Agreement to:
11.2.1 provide insurance substantially similar to Consultant’s insurance; and
11.2.2 indemnify Company in a form substantially similar to Consultant’s indemnification obligations in Section 9.
12.1 Company may terminate this Agreement without cause and without judicial or arbitral notice or resolutions and for any reason, by giving Consultant no less than ten (10) days’ written notice. In the event of termination pursuant to this clause, Company shall pay Consultant on a pro-rata basis any Fees then due and payable for any Services completed up to and including the date of such termination.
12.2 Company may terminate this Agreement, effective immediately upon written notice to Consultant, if Consultant breaches this Agreement.
12.3 Upon termination of this Agreement for any reason, or at any other time upon the Company’s written request, Consultant shall within five (5) days after such expiration or termination:
12.3.1 deliver to Company all Deliverables (whether complete or incomplete) and all hardware, software, tools, equipment or other materials provided for Consultant’s use by Company;
12.3.2 deliver to Company all tangible documents and materials (and any copies) containing, reflecting, incorporating or based on the Confidential Information;
12.3.3 permanently erase all of the Confidential Information from Consultant’s computer systems; and
12.3.4 certify in writing to Company that Consultant has complied with the requirements of this clause.
12.4 All terms that by their nature survive expiration or termination shall do so, including without limitation the terms and conditions of this section and Section 4 (Relationship of the Parties), Section 5 (Intellectual Property Rights), Section 7 (Confidentiality), Section 8 (Representations and Warranties), Section 9 (Indemnification), Section 10 (Limitation of Liability), Section 13 (Other Business Activities), Section 14 (Non-Solicitation), Section 15 (Assignment), Section 16 (Dispute Resolution), and Section 17 (Miscellaneous).
- Other Business Activities
13.1 Consultant may engage or employ in any other business, trade, profession or other activity which does not place Consultant in a conflict of interest with Company; provided, that, during the Term, Consultant shall not be engaged in any business activities that do or may compete with the business of Company or perform any services for direct competitors of Company.
14.1 Consultant agrees that during the Term of this Agreement and for a period of one (1) year following the termination or expiration of this Agreement, Consultant shall not directly or indirectly solicit to employ or otherwise retain Company’s personnel without written consent of Company, to be given or withheld in Company’s sole discretion.
15.1 Consultant shall not assign any rights, or delegate or subcontract any obligations, under this Agreement, without Company’s prior written consent, which may be withheld in Company’s sole discretion. Any assignment in violation of the foregoing shall be deemed null and void. Company may freely assign its rights and obligations under this Agreement at any time. Subject to the limits on assignment stated above, this Agreement will inure to the benefit of, be binding on, and be enforceable against each of the Parties and their respective successors and assigns.
15.2 In the event Company consents to Consultant’s use of one or more subcontractors to provide the Services, Consultant shall remain responsible and liable for any and all: (i) performance required hereunder, including the proper supervision, coordination, and performance of the Services; and (ii) acts and omissions of each subcontractor (including, such subcontractor’s employees and agents, who, to the extent they are involved in providing any Services) to the same extent as if such acts or omissions were Consultant’s. Consultant further agrees that it is fully responsible and shall be solely responsible for the compensation of any subcontractors and shall indemnify, defend, and hold Company harmless from Losses arising out of or related to the acts or omissions of any subcontractors. Company shall have no obligation to pay or to see to the payment of any moneys to any subcontractor.
- Dispute Resolution
16.1 In the event of any dispute or difference arising between the Parties in respect of any matter connected with this Agreement (“Dispute”), representatives of the Parties will work together in good faith to try to resolve the Dispute within seven (7) days. The Parties’ representatives will: (i) meet as often as the Parties reasonably deem necessary to gather and exchange all information regarding the Dispute and which is relevant to its resolution and (ii) discuss the Dispute and negotiate in good faith in an effort to resolve the Dispute without the necessity of any formal proceedings. If the Parties’ representatives are unable to settle the Dispute within the nominated timeframe, senior management (or equivalent) of each Party will act in good faith to try to resolve the dispute within a further seven (7) days.
16.2 Where a Dispute cannot be settled in accordance with Section 16.1, the Parties will endeavour to settle the matter by mediation administered by the American Arbitration Association (“AAA”) under its Commercial Mediation Procedures then in effect, which are incorporated herein by reference. The costs of the mediator will be born equally by the Parties.
16.3 If the Dispute is not settled by mediation within twenty-one (21) days of commencing the mediation, or such further period as the Parties shall agree in writing, the Dispute shall be referred to and finally resolved by binding arbitration conducted by the AAA pursuant to the AAA Commercial Arbitration Rules and Mediation Procedures then in effect, which are deemed to be incorporated by reference into this section. The number of arbitrators shall be one (1). The seat, or legal place, of arbitration shall be Chicago, Illinois. The arbitral proceedings shall be conducted in English. The law governing this arbitration agreement and all arbitral proceedings shall be the substantive laws of the State of Illinois.
16.4 Nothing in this Section 16 will prevent any Party from seeking immediate injunctive relief to protect any Intellectual Property Rights or Confidential Information.
17.1 Time is of the essence in relation to all Services and Deliverables. If Consultant fails to meet the relevant deadlines, in addition to any other rights under this Agreement, Company may:
17.1.1 refuse to accept any subsequent performance under this Agreement;
17.1.2 purchase substitute Services from elsewhere (and reclaim from Consultant any additional costs incurred as a result of procuring such Services from a third party);
17.1.3 hold Consultant accountable for any loss and additional costs incurred; and
17.1.4 have any sums previously paid by Company in respect of the affected Services refunded.
17.2 Consultant shall not export, directly or indirectly, any technical data acquired from Company, or any products utilizing any such data, to any country in violation of any applicable export laws or regulations.
17.3 All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each a “Notice”) shall be in writing and addressed to the applicable Party at the address designated below (or to such other address that a Party may designate from time to time in writing to the other Party). All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees prepaid), email (with receipt acknowledged), or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only if (a) the receiving party has received the Notice and (b) the noticing party has complied with the requirements of this Section.
17.4 This Agreement, together with the recitals, schedules and any other documents incorporated herein by reference, constitutes the sole and entire agreement of the Parties to this Agreement with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, written or oral, with respect to such subject matter. In the event of a conflict among this Agreement, schedule and any document incorporated by reference, the order of precedence shall be this Agreement, the schedules and finally any document incorporated by reference.
17.5 This Agreement may only be amended, modified or supplemented by an agreement in writing signed by each Party hereto, and any of the terms thereof may be waived only by a written document signed by the Party or Parties waiving compliance. Waiver of a right in one instance shall not act as a waiver or bar to enforcement of such right in any other instance.
17.6 This Agreement shall be governed by and construed in accordance with the internal laws of the State of Illinois without giving effect to any choice or conflict of law provision or rule. Subject to Section 16 (Dispute Resolution), each Party irrevocably submits to the exclusive jurisdiction and venue of the federal and state courts located in or having jurisdiction over Cook County, Illinois in any legal suit, action or proceeding arising out of or in any way based upon this Agreement or the Services provided hereunder and waives any argument or objection thereto.
17.7 If any provision of this Agreement is found by any court, tribunal, administrative body or authority of competent jurisdiction to be illegal, invalid or unenforceable, then such provision will, to the extent required, be severed from this Agreement and replaced with an enforceable provision that as near as possible reflects the Parties’ original intent. No other provisions of this Agreement shall be affected and will remain in full force and effect.
In addition to any other requirements imposed by Consultant in accordance with this Agreement, for Services subject to the laws of the United States of America:
- Consultant agrees that he/she/it will perform the Services in compliance with the Occupational Safety and Health Act of 1970, and all applicable state and local statutes, regulations and ordinances, including those relating to any hazards associated with performance of Consultant’s work under this Agreement (each and all an “OSHA Law”).
- Consultant acknowledges that he/she/it has had an opportunity to inspect the jobsite to identify any existing hazards and that he/she/it has a safety or health compliance program to protect himself/herself/itself and his/her/its employees (if any) against any hazards which may exist at the jobsite, including any and all necessary personal protective equipment required to perform such work.
- Consultant acknowledges that he/she/it will conduct all training required for himself/herself/itself and his/her/its employees (if any) for any hazards that they may be exposed to at the jobsite, as required by any OSHA Law and will maintain all documentation required for such training and make it available for inspection by the Company, if requested.
- Consultant agrees that he/she/it will conduct frequent and regular inspections of the work being performed pursuant to the Agreement to confirm that himself/herself/itself and his/her/its employees (if any) are complying with applicable OSHA Laws, including all OSHA Laws relating to any hazard to which he/she/it or its employees (if any) may be exposed, and will enforce appropriate discipline of its employees (if any), with documentation, for any violations.
- Consultant agrees that he/she/it will defend the Company in any regulatory action brought by the Occupational Safety and Health Administration (or comparable State agency) for any citations that are issued to the Company as a result of Consultant’s failure to perform the work under this agreement in accordance with each OSHA Law, including any and all attorney’s fees, costs and expenses and penalties incurred by the Company in defending against such citations.